Emily Brown v Woolworths Group Limited - [2023] FWCFB 10

[2023] FWCFB 10

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Emily Brown
v

Woolworths Group Limited

(C2022/7348)

Chantelle Brown
v

Woolworths Group Limited

(C2022/7829)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BELL
COMMISSIONER YILMAZ

SYDNEY, 18 JANUARY 2023

Appeal against decision [2022] FWC 2780 of Deputy President Easton at Sydney on 17 October 2022 in matter numbers U2022/3299 and U2022/3316 – permission to appeal refused.

Background

Emily Brown and her daughter Chantelle Brown (the Appellants) have lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Easton issued on 17 October 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellants, for an unfair dismissal remedy against Woolworths Group Limited (the Respondent) pursuant to s.394 of the Act.

The Appellants were employed as casual shop assistants at the Woolworths supermarket in Jindabyne. In February 2022, the Respondent introduced a group-wide policy that required its employees to be vaccinated against COVID-19. The Appellants were dismissed from their employment as they did not provide proof of vaccination. The Deputy President ultimately dismissed the Appellants’ applications finding that they were not unfairly dismissed in accordance with the Act.

Directions were set for the filing of material by the Appellants. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellants filed written submissions and made further oral submissions at the hearing on 6 December 2022. The Respondent filed written submissions seeking permission to be legally represented at the hearing in accordance with s.596 of the Act. At the hearing, the Full Bench granted permission for the Respondent to be legally represented.

For the reasons that follow, permission to appeal is refused.

Decision Under Appeal

Emily Brown commenced employment with the Respondent in July 2020 and Chantelle Brown commenced employment in March 2021. Both Appellants were dismissed by letter dated 12 March 2022. At the beginning of the Decision the Deputy President made the following observations:

“[9] In this matter the Applicants, through Mr Smith as their advocate, have run the same points that have been put to and rejected by the Commission, many times over. The arguments are in nearly identical terms to arguments put in other unsuccessful cases, and the result in this case is the same as the result in those other cases.

[10] I have carefully reviewed all of the evidence and submissions of the parties and have decided these two applications on their own merits. However it is not necessary to recite the Applicants’ submissions in detail or provide elaborate analysis of the many difficulties contained within those arguments. Almost all of the matters put by Mr Smith on behalf of the Applicants are not new and, frankly, should not have been put without a fulsome submission explaining how or why I could arrive at a different conclusion to all of those who have already considered and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCFB 10
Decision Date: 18 JANUARY 2023

CaseChat Overview and Summary

In the Fair Work Commission, Emily Brown and Chantelle Brown appealed against the decision of Deputy President Easton, who dismissed their application for unfair dismissal remedies against Woolworths Group Limited. The Appellants were dismissed due to their failure to comply with Woolworths' COVID-19 vaccination policy. The Full Bench, comprising Vice President Catanzariti, Deputy President Bell, and Commissioner Yilmaz, assessed whether the appeal should be permitted under section 604 of the Fair Work Act 2009. The Appellants argued that the policy was inconsistent with the Australian Constitution and that the Deputy President demonstrated bias and did not properly consider their evidence. They also alleged that the Deputy President erred in rejecting certain arguments and preferring the Respondent's evidence.

The Full Bench examined the grounds of appeal and found no reasonably arguable case of appealable error. The Appellants' arguments had been addressed at first instance, and the Deputy President's findings and approach were orthodox and well within the Commission's power. The Full Bench was not persuaded that the appeal was in the public interest, as it did not raise issues of importance and general application, nor did it manifest an injustice or result in a counter-intuitive outcome. The legal principles applied by the Deputy President were consistent with other decisions dealing with similar matters.

The Full Bench concluded that permission to appeal should be refused, as it was not in the public interest to grant it. The appeal raised no new or arguable case of error, and the Appellants' dissatisfaction with the outcome did not warrant a re-examination of the merits of their case. The Appellants' allegations of bias and procedural unfairness were rejected, and their claims regarding the Deputy President's consideration of evidence were dismissed.

Orders